Citation Nr: 0424926
Decision Date: 09/09/04 Archive Date: 09/16/04
DOCKET NO. 99-08 202 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to an effective date prior to March 25, 1996,
for a compensable rating for residuals of a right wrist
fracture.
2. Propriety of the reduction in evaluation for residuals of
a right wrist fracture from 30 percent to noncompensable.
REPRESENTATION
Veteran represented by: Sean Kendall, Attorney-at-Law
ATTORNEY FOR THE BOARD
N. N. Bland, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1950 to
June 1954.
In a rating decision dated in August 1996, the Department of
Veterans Affairs (VA) Regional Office (RO) in New York, New
York granted service connection for impairment of the right
radius, evaluated as 10 percent. The grant of service
connection and the 10 percent rating were made effective
March 25, 1996.
In October 1996, the veteran wrote that he was claiming
entitlement to an increased rating for his service connected
disabilities. Service connection was only in effect for
impairment of the right radius.
In a March 1997, rating decision the RO increased the rating
for the right wrist disability to 30 percent effective
November 5, 1996.
In November 1997, the veteran signed a statement in which he
asked for a "retro check back to April of 1955." It was
argued that he had filed a claim for service connection about
that time.
In December 1997, the RO issued a rating decision
establishing an effective date of June 10, 1954, for the
grant of service connection for the right wrist disability
described as status post fracture of the styloid process of
the right major radius with moderate neuropathy of the median
nerve. The disability was evaluated as noncompensable from
June 10, 1954 to November 4, 1996.
The veteran expressed disagreement with the decision to
assign an effective date of November 5, 1996 for a
compensable evaluation.
In February 1999, the RO issued a statement of the case as to
the issues of entitlement to an earlier effective date for a
compensable evaluation for the residuals of fracture of the
styloid process of the right wrist; and entitlement to a
higher evaluation for residuals of the fracture.
In February 1999, the RO issued a rating decision proposing
to reduce the evaluation for the right wrist disability to
noncompensable.
In a rating decision dated in May 1999, and issued on June 1,
1999, the RO reduced the evaluation for the right wrist
disability from 30 percent to noncompensable, effective July
1, 1999.
The veteran's representative submitted a notice of
disagreement with this decision in June 1999. In January
2000, the RO issued a supplemental statement of the case in
which it listed the issue as "evaluation of status post
fracture of the right radius currently evaluated as 0 percent
disabling." The supplemental statement of the case appears
to have considered the propriety of the rating reduction.
The Board notes that the substantive appeal referable to the
rating reduction was not received until October 2001.
Ordinarily, a substantive appeal must be received within 60
days of the statement of the case, or the remainder of the
one-year period after notice of the action being appealed.
38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. § 20.302(b)
(2003). However, the United States Court of Appeals for
Veterans Claims (Court) has held that the Board may waive the
timely filing of a substantive appeal, even if the veteran
has not submitted a request for extension of the time period
in which to file the substantive appeal. Beyrle v. Brown, 9
Vet. App. 24, 28 (1996) (citing Rowell v. Principi, 4 Vet.
App. 9, 17 (1993)); but c.f. Roy v. Brown, 5 Vet. App. 554,
556 (1993) (holding that an extension of time in which to
file a substantive appeal could not be granted unless a
request for extension was made in accordance with the
provisions of 38 C.F.R. § 20.303 (2003)).
In accordance with the Court's holding in Beyrle, the Board
waives the filing of a timely substantive appeal in this case
because of potential confusion over what issues were being
considered in the January 2000 supplemental statement of the
case; and because the RO has certified the rating reduction
as being on appeal.
Although, in February 1999, the RO issued a statement of the
case that included the issue of "evaluation of residuals of
fracture of the styloid process of the right radius currently
evaluated as 30 percent disabling." There is no evidence of
a notice of disagreement as to this issue.
In March 1999, the veteran submitted a VA Form 9 that could
be construed as disagreeing with decisions made in the
February 1999 statement of the case or February 1999 rating
decision that considered the propriety of the current
evaluation. The January 2001, supplemental statement of the
case considered the propriety of the current evaluation, and
can be seen as fulfilling the role of a statement of the case
in response to the March 1999 notice of disagreement.
However, the veteran did not submit a substantive appeal with
regard to this issue, and it has not been certified as being
on appeal. Therefore, the Board does not have jurisdiction
over this issue. 38 U.S.C.A. § 7105.
In June and November 2002, the Board undertook additional
development of the claims on appeal. In September 2003 the
Board remanded the veteran's appeal so that the RO could
consider the evidence developed by the Board. Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003).
By virtue of this decision, the 30 percent evaluation for
residuals of a right wrist fracture is restored. The issue
of entitlement to an effective date earlier than March 25,
1996, for a compensable rating for residuals of a right wrist
fracture is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
FINDINGS OF FACT
1. All information and evidence necessary for an equitable
disposition of the veteran's appeal have been obtained by the
RO.
2. The medical evidence does not establish improvement in
the service-connected residuals of a right wrist fracture.
CONCLUSION OF LAW
The criteria for restoration of a 30 percent evaluation for
residuals of a right wrist fracture have been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e),
3.344. 4.124a, Diagnostic Code 8615 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initial Matters: Duty to Assist
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000), and the implementing regulations
essentially eliminate the requirement that a claimant submit
evidence of a well-grounded claim, and provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim, but VA is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002). In addition, regulations
implementing the VCAA are codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2003).
The Court of Appeals for Veterans Claims has concluded that
the VCAA was not applicable where further assistance would
not aid the appellant in substantiating his claim. Wensch v.
Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. §
5103A(a)(2) (Secretary not required to provide assistance
"if no reasonable possibility exists that such assistance
would aid in substantiating the claim"). In view of the
Board's favorable decision with regard to the claim decided
in this appeal, further assistance is unnecessary to aid the
appellant in substantiating his claim.
Pertinent Criteria
Disability evaluations are determined by applying a schedule
of ratings (rating schedule) which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2003).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the
claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
In the case of a disability rating in effect for less than
five years, reexaminations disclosing improvement, physical
or mental in the disability will warrant a reduction. 38
C.F.R. § 3.344(c).
The residuals of the service connected right wrist fracture
have been assigned a noncompensable disability rating under
the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8615.
Diagnostic Code 8615 applies to neuritis of the median nerve.
Neuritis is characterized by loss of reflexes, muscle
atrophy, sensory disturbances, and constant pain, at times
excruciating, and is rated on the scale provided for injury
of the nerve involved, with a maximum equal to severe,
incomplete, paralysis. 38 C.F.R. § 4.123.
Incomplete, severe paralysis warrants assignment of a 50
percent evaluation for the major extremity and a 40 percent
evaluation for the minor extremity. Incomplete, moderate
paralysis warrants assignment of a 30 percent rating for a
major extremity and a 20 percent evaluation for a minor
extremity; and incomplete mild paralysis warrants assignment
of a 10 percent evaluation for either upper extremity.
Analysis
The veteran's service medical records show that on X-ray
examination in August 1952, the veteran was found to have a
fracture through the base of the styloid process of the
radius. There was slight separation at the fracture site.
The fracture line also extended longitudinally in the distal
end of the radius. Additional X-ray studies were made in
September and October 1952. The last X-ray examination in
October 1952 was interpreted as showing the fractured styloid
process of the radius. There was reportedly no definite
evidence of beginning union. The examination for service
separation reported no pertinent abnormality.
On VA examination in August 1996, the diagnoses were status
post fracture of the styloid process of the right radius with
wasting of the thenar area of the right thumb with post-
traumatic arthritis of the right thumb and also nerve damage
to the nerve supplying the right thumb from surgery performed
on the right wrist in 1952. A contracture of the palmar
fascia of the right hand was also noted.
In November 1996, the RO received records from a
chiropractor, Barry Bodenstein. An entry dated in July 1976
contained the following history:
Auto accident 1954, frac skull-nose-jaw-
right wrist twice-index finger, right
hand-1962-pinky twice, right hand-1960's-
right elbow 1948, bone chip removed,
right elbow 1948.
The veteran was noted to have an 80 percent loss of muscle
at the web of the right hand.
On VA examination in February 1997, it was reported that
following the right wrist fracture in 1952, the veteran had
undergone an open reduction. The reduction had not been
satisfactory, and the veteran had undergone a second
reduction during service. Following this procedure, he had
begun to have wasting of the thenar area of the dorsal aspect
of the thumb and first two fingers. It is unclear where the
examiner obtained this history.
The examiner further reported that the veteran currently
worked as a mechanic and was having difficulty holding
objects and doing the mechanical tasks. He complained of
tingling and numbness of the thumb and first two fingers.
On examination the veteran had marked wasting of the thenar
space on the dorsum of the right hand. There was marked
decrease in grasp strength. There was also decreased
sensation to pinprick on the palmar surface of the thumb and
first two fingers, and a positive Tinel's sign. The
diagnosis was status post fracture, right wrist with nerve
injury resulting in thenar atrophy and carpal tunnel syndrome
with neuropathy of the thumb, index and middle finger.
The RO granted the 30 percent evaluation on the basis of the
February 1997, examination.
In May 1998, the RO, noting the veteran's requested that it
obtain a medical opinion in conjunction with this claim for
an earlier effective date for the compensable evaluation,
referred the claims folder to a VA medical center for review
by an orthopedist and neurologist. In the request, the RO
noted that the veteran's separation examination did not show
any defects or abnormalities.
In July 1998, Dr. Jeffery Fisher, Chief of Administrative
Medicine at a VA medical center reported the results of a
review of the claims folder. Dr. Fisher noted the X-ray
examinations in August and September 1952, the separation
examination, the chiropractor's report dated in July 1976,
and the results of the VA examinations. He concluded that
the fracture of the distal radius styloid process which
occurred in the summer of 1952 healed without significant
enough long-term effects as to be not documented in the
separation examination two years later in June 1954. He also
opined that a fracture of the distal radius would be very
unlikely to produce an injury to the medial nerve. These
facts suggested to Dr. Fisher that the observed disability
involving the right hand was not the result of the fracture
of the distal radius occurred during the service. Dr. Fisher
further stated that it was possible that the dysfunction
relative to the right hand might be the result of post-
service trauma documented in a sketchy fashion in the
chiropractic report. He noted that "better documentation of
those injuries might provide...a nexus to the current
condition."
The RO issued a rating decision in February 1999 proposing to
reduce the 30 percent rating for residuals of a right wrist
fracture. The veteran was subsequently notified of this
decision by letter that same month. In a rating decision,
dated in May 1999, and issued in June 1999, the veteran's
disability rating was reduced and he was notified the
following month.
In a March 1999 VA Form 9 (Appeal to Board of Veterans'
Appeals), the veteran reported that the fractures listed by
Dr. Fisher in July 1998, were not related to the auto
accident of 1954. He stated that his wrist was broken a
second time during service while he was in the hospital
having the initial break treated because the original setting
would have caused his wrist to be set improperly. He also
reported that he was told to file for VA benefits at the time
of his discharge, and he did.
In March 1999, Dr. Bodenstein submitted a statement in which
he wrote "on the case history card of the above patient the
numerous fractures listed are not related to the auto
accident of 1954."
The veteran was afforded a VA neurologic examination in
October 2002. The examiner, Dr. Bartol, noted that the
veteran had a fracture of the right styloid process in
Germany, on August 17, 1954, and again in 1962.
On physical examination, loss of the thenar eminence on the
first interosseous area was noted. The flexion was 30
degrees on the right and radial deviation was limited to 20
degrees. Finger abduction was within normal limits.
Strength of the right hand was less than the left. The
diagnosis was status post fracture of right style process
while in service and minimal degenerative arthritis.
Dr. Bartol noted that no X-rays were available for review.
He noted that "physical examination is very minimal on this
patient on the right hand." He also found that if any nerve
had been involved it would have been the radial rather than
the median, because the radial nerve affected the thumb,
where the veteran had problems. He added that the veteran
had recurrent fractures of the hand and that there were
probably other fractures of the hands that had not been
mentioned by the veteran.
In November 2002, the Board requested that Dr. Bartol provide
clarification.
In a December 2002 addendum to the examination report, Dr.
Bartol reported that he had reviewed the claims folder and
concluded that it was highly unlikely that the veteran's
median nerve damage was related to his service disability
since the discharge physical was essentially negative.
The veteran submitted an October 2002 statement from R.
Baker, R.N. Nurse Baker reviewed the veteran's claims folder
and concluded that Dr. Fisher's opinion was not a sufficient
basis to reduce the disability rating. She noted that there
was no documentation that Dr. Fisher performed a physical
examination on the veteran to address his condition, instead
he only addressed current assessments made by other
practitioners, of which there was significant data to
indicate that there was probability that the condition could
be the long term result of the injury sustained while in
service. She concluded, based on the available information
and medical evaluations at hand, that the veteran's current
condition is at least as likely as not to be attributed to
the right wrist fracture sustained in 1952.
The veteran submitted an independent medical evaluation from
C. Bash, M.D., neuro-radiologist, dated in April 2003. Dr.
Bash reviewed the veteran's service medical records, post
service medical records, other medical opinions, and medical
literature. In Dr. Bash's opinion, the veteran had a severe
wrist injury in service with a fracture of his styloid
process/distal radius and that this injury lead to
degenerative arthritis and carpal tunnel syndrome in his
right wrist which has resulted in his tingling, medial nerve
damage (as far back as 1976), loss of use of the right thumb,
contracture and thenar muscle atrophy.
The rating reduction was premised largely on the findings on
the medical records review in July 1998, that the veteran's
current disability was not associated with the fracture
documented in service. The opinions provided by a different
VA examiner in October 2002 and December 2002 also appear to
support the conclusion that the veteran's current disability
was unrelated to the fracture in service.
However, these opinions appear to rely on a significant
amount of conjecture, and do not appear to have considered an
entirely accurate history. For instance the July 1998
opinion considered only the August and September 1952 X-ray
reports, and made no mention of the October 1952 X-ray
examination. The latter X-ray showed that the fracture had
not healed, and would seem to weigh against a finding that
the veteran had no residual disability from the in-service
fracture. The October 2002 examination report, incorrectly
reports that the veteran's initial injury took place in 1954,
and speculates, without any reported basis, that the veteran
had additional fractures of the right hand that he had not
reported. The December 2002 addendum incorrectly states that
the February 1997 examination contained reports of
significant post-service trauma to the right hand.
The Board also notes that there has been no severance of
service connection for the median nerve disability. See
Baughman v. Derwinski, 1 Vet. App. 563 (1991) (holding that
once a disability is listed in a rating decision as service
connected, service-connection remains in effect unless
properly severed).
The examinations since February 1997, have mainly focused on
what aspect of the veteran's disability is service connected,
and have not contained any very detailed reports as to the
extent of the disability. They do not show improvement in
the service connected right wrist disability.
Therefore, the Board finds that restoration of the 30 percent
evaluation is warranted. 38 C.F.R. § 4.124a, Diagnostic Code
8615.
ORDER
The rating reduction was not proper, a 30 percent disability
rating for residuals of a right wrist fracture is restored.
REMAND
The VCAA and its implementing regulations require VA to
notify the claimant and the claimant's representative, if
any, of any information, and evidence, that was not
previously provided to VA, and is necessary to substantiate
the claim.
As part of that notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. 38 U.S.C.A. § 5103(a). VA has
promulgated regulations implementing the statute, whereby it
has undertaken to request that claimants submit relevant
evidence in their possession. 38 C.F.R. § 3.159(b) (2003).
The Court has held that the notice requirement is not met
unless VA can point to a specific document in the claims
file. See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The veteran has not received this required notice
for his claim of an effective date earlier than March 26,
1996, for a compensable rating for residuals of a right wrist
fracture. The AMC or RO should provide the appellant with
notice regarding the claims in accordance with 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b).
Therefore under VA's statutory duties to notify and to
assist, the Board determines that additional development is
necessary before deciding this appeal and remands the case
for the following action:
1. The AMC or RO should provide the
veteran with notice regarding the claim
for an effective date earlier than March
26, 1996, for a compensable rating for
residuals of a right wrist fracture in
accordance with 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b).
2. The AMC or RO should then re-
adjudicate the claim, and, if it remains
denied, issue a supplemental statement of
the case.
Thereafter, the case should be returned to the Board, if in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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